Steven Pinder v. Alva McDowell , 619 F. App'x 565 ( 2015 )

United States Court of Appeals
For the Eighth Circuit
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No. 15-1721
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Steven L. Pinder
lllllllllllllllllllll Plaintiff - Appellant
v.
Alva Green McDowell, Health Services Administrator, Tucker MSU; Dotson,
Director of Nursing; Sonya Davis-Peppers, Doctor; Jacqueline Carswell, Nurse
Practitioner; Boston, Nurse; Horner, Nurse; Jane Doe, Nurse; Floss, Doctor and
Regional Supervisor; Roy Griffin, Assistant Director, ADC; John Doe, Chief
Executive Officer, Correct Care Services; Correct Care Services; Maxor Pharmacy;
Hamilton, Nurse; William Straughn, Warden
lllllllllllllllllllll Defendants - Appellees
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No. 15-2033
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Steven L. Pinder
lllllllllllllllllllll Plaintiff - Appellant
v.
Alva Green McDowell, Health Services Administrator, Tucker MSU; Dotson,
Director of Nursing; Sonya Davis-Peppers, Doctor; Jacqueline Carswell, Nurse
Practitioner; Boston, Nurse; Horner, Nurse; Jane Doe, Nurse; Floss, Doctor and
Regional Supervisor; Roy Griffin, Assistant Director, ADC; John Doe, Chief
Executive Officer, Correct Care Services; Correct Care Services; Maxor Pharmacy;
Hamilton, Nurse; William Straughn, Warden
lllllllllllllllllllll Defendants - Appellees
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Appeals from United States District Court
for the Eastern District of Arkansas - Pine Bluff
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Submitted: September 24, 2015
Filed: October 29, 2015
[Unpublished]
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Before WOLLMAN, LOKEN, and BYE, Circuit Judges.
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PER CURIAM.
In these consolidated cases, Arkansas inmate Steven Pinder appeals the district
court’s order revoking his in forma pauperis (IFP) status in this 42 U.S.C. § 1983
action based on its finding that he was three-strikes-barred (No. 15-1721), and the
court’s later order dismissing his complaint without prejudice for failure to pay the
filing fee (No. 15-2033). We grant Pinder leave to proceed IFP, vacate the district
court’s orders, and remand the matter for further proceedings.
Pinder, an inmate in the Arkansas Department of Correction (ADC) at Tucker,
sought leave to proceed IFP to file this pro se section 1983 action alleging that
defendants were deliberately indifferent to his medical needs. Specifically, defendants
did not take him to ophthalmologist appointments and did not provide him glaucoma
medication; did not allow him to see a throat doctor although their policy of crushing
and covering his butalbital medication (for migraines) in water damaged his
esophagus; and discontinued his butalbital in retaliation for his filing grievances.
Although the magistrate initially granted leave to proceed IFP, the district court
vacated his IFP status after finding that he was three-strikes-barred under 28 U.S.C.
§ 1915(g), and that he was not in imminent danger of serious physical injury. Pinder
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argues on appeal that he is in imminent danger of blindness and damage to his
esophagus.
Upon careful review of the record, we agree with the district court that Pinder
had acquired three qualifying “strikes” under section 1915(g) when he initiated the
instant action. See 28 U.S.C. § 1915(g); Owens v. Isaac, 487 F.3d 561, 563 (8th Cir.
2007) (per curiam) (reviewing de novo the district court’s interpretation and
application of § 1915(g)). We conclude, however, that Pinder has adequately alleged
imminent danger. He states that defendants’ actions caused him to lose 50% of his
field of vision in his right eye and 15% of his field of vision in his left eye at the time
he filed his appeal, and we note that defendants’ submission that Pinder had 20/20 and
20/25 vision does not contradict his claim that he suffered loss in his field of vision.
He asserts that he has continued to miss medication doses, which creates a risk of
blindness. Pinder further alleges that due to the crushed medication policy, he must
choose between debilitating migraines and possible damage to the esophagus leading
to an inability to eat. See Martin v. Shelton, 319 F.3d 1048, 1050 (8th Cir. 2003)
(requisite imminent danger must exist when complaint and appeal were filed;
exception requires specific fact allegations of ongoing serious physical injury, or
pattern of misconduct evidencing likelihood of imminent serious physical injury); cf.
McAlphin v. Toney, 281 F.3d 709, 710-11 (8th Cir. 2002) (imminent-danger
exception applied where inmate alleged that five tooth extractions had been delayed
in past and that delay of two more tooth extractions was causing spreading mouth
infection). Therefore, we grant leave to proceed IFP on appeal.
We also conclude that, based on Pinder’s allegations, the district court erred in
revoking IFP status and dismissing the complaint. Accordingly, we vacate the district
court’s orders and remand for review of the merits of the entire amended complaint.
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